Given the contradictory positions now-President Trump took when he was being prosecuted by the Biden DOJ special counsel, this lawfare flyer is astonishing.

Senators Lindsey Graham (R., N.C.) and John Cornyn (R., Texas) are leading the charge of Republicans who are calling for a special counsel to investigate former President Barack Obama and top national security officials of his administration in connection with Russiagate — in particular, actions taken circa 2016-17 to investigate the Trump campaign and, later, President Trump himself.

This is a ludicrous suggestion, for at least five reasons:

1. When he was running for president, now-President Donald Trump took the positions, in court, that (a) the Justice Department’s special counsel regulations (see 28 C.F.R. §§600.1 et seq.) are unconstitutional to the extent that they allow the attorney general to appoint a special counsel (at least if that prosecutor has not been nominated by the president and confirmed by the Senate). Under the Constitution’s appointments clause, Trump argued, special counsels are federal officers who must either (i) occupy a position created by congressional statute or (ii) appointed by the president and confirmed by the Senate. Judge Aileen Cannon in Florida upheld this argument against Biden DOJ special counsel Jack Smith, dismissing the indictment against Trump in the Mar-a-Lago documents case.
2. When he was running for president, Trump took the position in court that presidents (including former presidents) must have immunity from criminal prosecution for all acts taken within the ambit of executive authority. The Supreme Court accepted this argument (see Trump v. United States (2024)). As a result Jack Smith’s January 6 indictment against Trump could never be brought to trial. Based on Trump’s argument, President Obama has immunity from prosecution. So, very likely, do all executive branch officials from the Obama administration whose official acts in connection with Russiagate are under scrutiny by Trump supporters.
3. The federal statute of limitations for most crimes is five years. The events in question happened in 2016-17, i.e., at least eight years ago.
4. Russiagate was already investigated by a prosecutor, former Connecticut U.S. attorney John Durham, appointed by the Trump I DOJ, who was made a special counsel when the Biden administration was about to enter office (in order to avoid conflicts of interest — see point 5, below). He spent four years on the case, prosecuted three cases (one guilty plea, two trial acquittals), and — as our editorial yesterday noted — issued a 306-page final report. Durham concluded that the Trump-Russia collusion narrative was a fabrication by the Clinton campaign, largely based on the bogus Steele dossier, that was retailed to Obama administration agencies, in particular the FBI, which, in turn, irresponsibly used it to open a full investigation and in sworn FISA court applications without subjecting it to normal investigative techniques by which the FBI is supposed to verify information. Durham concluded that other government officials could not be prosecuted because, though their conduct was abusive, they did not violate specific criminal statutes.
5. Assuming for argument’s sake the special counsel regulations are constitutional (but see point 1, above), a special counsel should only appointed when (a) there are valid grounds for an investigation or prosecution, and (b) there is a conflict of interest that prevents the Justice Department from investigating in the normal course. (See §600.1.) Here, (a) there are no valid grounds for prosecution (see points 1 through 4, above), and (b) there is no conflict of interest that would prevent a Republican Justice Department from investigating Democratic former officials. (Such conflicts happen when the Justice Department under one party is in the position of having to investigate members of its own administration, such as the president, or their close relatives — e.g., the Biden DOJ’s investigation of Hunter Biden presented a profound conflict of interest.)

Just as there is no legal basis to appoint a special counsel, there is no reason to believe there are prosecutable cases against former President Obama and his then-subordinates. That being the case, this flyer is nothing more than lawfare: President Trump and allied Republicans seeking to exploit the justice system against their political opponents, just as those opponents shamefully exploited it against Trump and some of his subordinates. This is a vicious cycle that is undermining the legitimacy of federal criminal prosecution.

While it would be an utterly pointless waste of time (for the reasons outline above, and here), there would be no legal impediment if Attorney General Pam Bondi decided to assign yet another Russiagate investigation to an appropriate U.S. attorney’s office, a Senate-confirmed U.S. attorney, or some qualified official at Main Justice. But again, there is no basis to appoint a special counsel, and it would be astonishing if one were appointed in light of the positions taken by President Trump when he was under indictment and being represented by lawyers who are now top officials at the Justice Department.